(Re)conceptualising the male subject in family law

Recent empirical and theoretical scholarship concerned with exploring the gen­dered discourses of family law has sought, in a number of ways, to explore the masculine subjects of family law. Whether it be in relation to studies of divorce law and practice, contact law reform, marriage, parenthood or men’s relation to employment, for example, it is possible to see in family law the concept of mascu­linity being deployed in a number of ways.[1048] There has occurred a questioning of the way in which ideas about masculinity have mediated men’s and women’s experiences of the family justice process, with research speaking of the emergence of a distinctive ‘masculinised discourse’ of divorce; of men adopting ‘masculine’ subject positions within the processes of separation;[1049] of ideas of a normative masculinity correlating, broadly, with the tendency of men to relate to, and appeal in their engagement with the legal process in terms of, a rights-based framework.[1050] Elsewhere, a sense of challenged masculinity has been evoked in such a way as to link aspects of male identity either to an embrace of or (more frequently) resist­ance to changes seen as taking place in the (nuclear) family unit.[1051] The latter theme has been particularly evident in recent studies of fathers’ rights groups and, more generally, in work focused on the interventions of the men’s movement in the field

of family law.[1052] Far from seeing women as the real or potential victims of family law reform and/or practice – a position which has, arguably, informed debates about family law at various points in the past – a powerful discourse has emerged which suggests that a range of ostensibly liberalising reforms may have, in fact, rendered men the real ‘losers’ in the field of family justice. It is against this back­ground that feminist scholars have suggested that what is in fact taking place in this area is, internationally, something akin to, if not a ‘backlash project’, then a resistance to ‘feminist inspired’ legal and social changes; a development which reflects the disproportionate influence of fathers’ rights groups in managing to set reform agendas in the field of family law.[1053]

In much of the textual-based study of law discussed above, however, it is pos­sible to identify a rather different object of analysis; it is in relation to these kinds of study that, I would suggest, the problems with masculinity can appear particularly marked. It has been a recurring theme within the study of masculinity in legal studies that law has been involved in the reproduction and/or embodiment of a form of ‘hegemonic masculinity’. This is an idea closely associated with the structured model of gender power[1054] developed in the work of RW Connell.[1055] Repeatedly, this hegemonic masculinity has appeared as something which is to be unpacked, deconstructed or uncovered in law. Certainly, such work engages with the contested nature of law, the ever-present possibility of resistance, in ways that are in keeping with themes developed in feminist legal scholarship during the 1980s around the ‘open-ended’ nature of law. However, it does leave certain questions unanswered. It is unclear, in particular, how the model of hegemonic masculinity seen to be embodied in law relates to the actual lives and gendered practices of men and women. Thus, whilst textual readings can provide a wealth of information about how law constructs, sees or produces particular ideas about men and gender in the context of family law (although see further below), what we do not find is any account of how this relates to what individuals do. Why, for example, should it be the case that, whilst some men might ‘turn to’ or invest in particular (hegemonic) masculine subject positions (let us say, within a post­divorce separation context), others do not? Men encounter a diverse range of circumstances which frame their individual experiences of ‘family life’. If it is to be argued that a distinctive kind of familial masculinity is ‘offered up’ for all men within a particular socio-cultural, structural location, why do individual men choose one, and not another, masculine identity? (And who, in any case, is doing this ‘offering up’?)[1056] There is clear evidence that men might identify with a diverse range of resources to ‘accomplish’ their masculinity in this sense. This does not, in itself, argue against the proposition that men are ‘doing’ hegemonic masculinity in the process of ‘doing’ family practices. However, it remains unclear how questions of individual life-history and biography impact on any such choice. How adequate, in short, is this kind of theorisation in seeking to account for the subjectivity of individual men? And what is the process by which these distinctive ‘masculinities’ are then constituted?

In this kind of deployment of a normative hegemonic masculine subject within critical scholarship, there does appear to be a certain rigidity in terms of how men are understood to be accomplishing or aspiring to the attributes of a dominant form of masculinity. Indeed, a model of gendered power would appear to hold in place a normative masculine gender as the object of (feminist) critique; one to which is then assigned a range of (broadly undesirable/negative) characteristics. Yet, at the same time, it appears to impose ‘an a priori theoretical/conceptual frame on the psychological complexity of men’s behaviour’.[1057] What this means is that masculinity can all too easily appear, at once, as both a primary and under­lying cause (or source) of a range of social effects (of what men do); and, simul­taneously, as something which results from certain social actions. This is, at the very least, a tautologous proposition.[1058] There is a sense in which social structure would appear to constrain men’s practice. Yet a vast body of empirical, historical and autobiographical research on men suggests that there can be a richness, tex­ture and subtlety to the ‘gendered lives’ of men, which this kind of deployment of hegemonic masculinity – and the associated (selective) focus on what are seen to be the negative connotations of the hegemonic masculine – cannot by itself account for.[1059]

Underscoring these problems is another issue: how the masculine social subject has itself been theorised. There has emerged in recent years, within the sociology of masculinity, an attempt to build on the above critique of the structured action model and to seek, in contrast, to take the psychic dimensions of (masculine) subjectivity seriously. This is a perspective which has begun to inform studies of family law and practice in a number of ways.[1060] It is not possible to do justice here to the complexity of the substantive analyses which have been produced in this area; nor the complex groundings of strands of this work within contemporary psychoanalysis.[1061] It is, however, possible to trace elements of this development in terms of what it might have to say about developing understandings of the male subject in family law.

This psycho-social perspective, as it has been termed, tends to draw on the concept of discourse[1062] rather than that of social structure. It has evolved, as it were, from the ‘third stage’ thinking as outlined above. In one strand of this work, what is placed centre stage is an attempt to engage with the presentational forms of masculine performances, identities, corporeal enactments and so forth.[1063] In rejecting, in suitably post-modern fashion, the idea of a unitary rational male subject, the aim has been, rather, to develop a social understanding of the mascu­line psyche; one which might, it is argued, shed light on men’s behaviour across diverse areas of law and legal practice. Allied to the insights of queer theory (a body of work, arguably, strangely absent within the field of family law), the masculine subject has appeared as a ‘performative construction’ naturalised through repetition; contingent, unstable, nothing more (or less) than (at most) a temporary association with a particular desire and/or social identity; a manifest­ation of a gendered self conceptualised in terms of a series of constantly shifting practices and techniques.

This approach does offer up a way of prising open the possibility of making sense of the contradictions and difficulties that particular men may experience in becoming masculine. For example, by seeking to integrate questions of individual biography and life history, it is argued that a handle is given on the important question, noted above, of why some men do, and others do not, invest or engage in certain kinds of behaviour or subject positions. Importantly for feminist legal studies, questions of social power do remain. However, the focus of analysis shifts to how a (non-unitary) ‘inherently contradictory’ social subject comes to invest, whether consciously or unconsciously, in what are then seen at particular historical moments as socially empowering discourses around masculinity.

This approach has a rich potential for feminist scholarship in the field of family law, as has been evident in relation to studies of the fluid, evolutionary nature of post-divorce family life. It offers a great advance politically on the (always, already) empowered subject implicit within both the structured model of gender power, as above, as well as strands of feminist and pro-feminist thought. It would also appear to reject any ‘reductive view of men as oppressors.. . [one] that [has] not endeared feminism to those men who might otherwise have been sympa – thetic’.[1064] However, criticisms can also be made of this approach. Leaving aside the issue of whether the more explicitly psychoanalytically informed strand of this recent work on masculinity might itself be premised on an unduly mechanistic model of personality formation, an argument remains: although what we have here can offer a rich story for describing the effects of discourses of masculinity within particular contexts relating to families, they remain, at the end of the day, just that – stories. It is difficult to see how readings produced about the ‘taking up’ of a masculine subjectivity can ever be tested or proven in any meaningful way.[1065] It is also unclear whether we are reduced, ultimately, to an ‘all is discourse’ position, an issue which links to the broader critique of post-modernism within and beyond feminist scholarship. In disavowing any outer reality, is one left with a wholly semiotic account in which, as Connell himself observes, ‘with so much emphasis on the signifier, the signified tends to vanish?’[1066] As John Hood-Williams has noted,[1067] is it not difficult to maintain that there are many ‘discourses of subjectivication’ whereby masculine identities become attached to individuals and, at the same time, maintain (as some do) that the claims this approach is making are grounded in real, historically specific and irreducible psychological processes?

What, ultimately, is meant by the term masculinity in this context? ‘Is it a discourse, a power structure, a psychic economy, a history, an ideology, an identity, a behaviour, a value system, an aesthetic even?’ Or is it ‘all these and also their mutual separation, the magnetic force of repulsion which keeps them apart… a centrifugal dispersal of what are maintained as discrete fields of psychic and social structure’?[1068] Masculinity has encompassed within feminist legal studies such diverse attributes as the psychological characteristics of men, a range of gendered (as masculine) experiences and identities, psychoanalytic readings of social prac­tices (as above), as well as analyses of men’s gendered behaviour within specific institutional settings.[1069] To speak legitimately in this work of a ‘discourse of mascu­linity’, however, entails showing that ‘a particular set of usages was located struc­turally within a clearly defined institution with its own methods, objects and practices’.[1070] It is possible one could argue this in relation to law, although the heterogeneity and diversity of the issues discussed above would suggest otherwise. Yet if that is the case, references to ‘discourses of masculinity’ are themselves simply references to ‘repeated patterns of linguistic usage’.[1071] Whilst masculinity may be produced within some discourses, most examples ‘of “masculine” utter­ances’ are not necessarily discourses. At the very least, I have argued elsewhere,[1072] masculinity is not a fixed, homogenous or unchanging concept; it encompasses a complex range of ideas and debates about the connections between a multiplicity of parallel worlds: of, for example, workplace, family, friendships, body regimes, sexual practices and relationships.[1073]